Burke v. N.Y.C. Transit Auth.

• Decision Date: 31 December 2020
• Docket Number: 527868
• Parties: In the Matter of the Claim of Brian Thomas BURKE, Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, Respondent. Workers' Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 1987

139 N.Y.S.3d 403

In the Matter of the Claim of Brian Thomas BURKE, Appellant,

v. NEW YORK CITY TRANSIT AUTHORITY, Respondent.Workers' Compensation Board, Respondent.

527868

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 16, 2020

Decided and Entered: December 31, 2020

Brian Thomas Burke, New York City, appellant pro se.

Foley, Smit, O'Boyle & Weisman, New York City (Michael P. Furdyna of counsel), for New York City Transit Authority, respondent.

Before: Garry, P.J., Lynch, Clark, Mulvey and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a decision of the Workers' Compensation Board, filed April 17, 2018, which ruled, among other things, that claimant's employment was not terminated in violation of Workers' Compensation Law § 120.

Claimant worked as a subway train operator for the New York City Transit Authority (hereinafter the employer) between February 2001 and March 2015. In 2014, claimant filed a claim for workers' compensation benefits, alleging that he had suffered work-related psychological injuries due to harassment by supervisors.¹ A Workers' Compensation Law Judge (hereinafter WCLJ) disallowed that claim following a hearing and the Workers' Compensation Board affirmed, finding that claimant failed to establish that the stress he experienced was any greater than that of similarly situated workers in the normal work environment. This Court affirmed the Board's decision upon claimant's appeal (148 A.D.3d 1498, 50 N.Y.S.3d 625 [2017] ).

In January 2015, the employer sent claimant a letter notifying him of its intent to terminate his employment, effective April 18, 2015, due to his "absen[ce] and/or [inability] to perform the duties of [his] position due to a non-service connected illness/injury since [April 18, 2014]" (see Civil Service Law § 73 ). The letter further advised that claimant "may be eligible for reclassification to another title," and he checked a box on that form electing to be reclassified. Consequently, in March 2015, claimant began training for the position of station agent and was placed on a period of probation in that title.

Shortly thereafter, the New York Post published an article detailing a lawsuit that claimant had filed against the employer, which portrayed him in an unflattering light. In April 2015 – after having completed approximately two weeks in the station agent position – claimant experienced a panic attack while at work. As a result, he applied for workers' compensation benefits, alleging that he had developed a work-related panic disorder

after being subjected to questions from coworkers about the New York Post article. The 2015 claim was established for a work-related panic disorder, with the Board finding that claimant was "exposed to stress greater than that which other similarly situated workers experienced in the normal work environment" insofar as the employer had posted the article on its website and left it in common areas.

In February 2016, claimant filed a discrimination complaint with the Board (form DC–120) pursuant to Workers' Compensation Law § 120, alleging that the employer took various actions against him in retaliation for filing his workers' compensation claims, including subjecting him to harassment, reclassifying him to the station agent position, and withholding certain wages and payments to which he was entitled. A few months later, in May 2016, the employer terminated claimant's employment as a station agent – citing "an unsatisfactory probationary period" – and requested that he promptly return all employer-issued equipment. Following a hearing on claimant's discrimination complaint, a WCLJ determined that claimant failed to demonstrate a nexus between the employer's conduct against him and his pursuit of workers' compensation benefits sufficient to establish a violation of Workers' Compensation Law § 120.² The Board agreed and affirmed that determination, prompting this appeal by claimant.

We affirm. Workers' Compensation Law § 120 prevents an employer from terminating or otherwise discriminating against an employee who has filed or attempted to file a claim for workers' compensation benefits (see Matter of Duncan v. New York State Dev. Ctr., 63 N.Y.2d 128, 131–133, 481 N.Y.S.2d 22, 470 N.E.2d 820 [1984] ; Matter of Markey v. Autosaver Ford, 181 A.D.3d 1126, 1127, 119 N.Y.S.3d 773 [2020] ; Matter of Romero v. DHL Holdings [USA] Inc., 169 A.D.3d 1124, 1125, 92 N.Y.S.3d 755 [2019] ). The burden of proving unlawful retaliation under the statute rests with the claimant, who must demonstrate "a causal nexus between the claimant's activities in obtaining compensation and the employer's conduct against him or her" ( Matter of Peterec–Tolino v. Five Star Elec. Corp., 178 A.D.3d 1215, 1216, 114 N.Y.S.3d 775 [2019] [internal quotation marks and citations omitted]; see Matter of Fetahaj v. Starbucks Corp., 144 A.D.3d 1350, 1351, 41 N.Y.S.3d 322 [2016], lv denied 29 N.Y.3d 918, 2017 WL 4014989 [2017] ). The Board "is vested with the discretion to weigh conflicting evidence and evaluate the credibility of witnesses, and its resolution of such matters must be accorded ... deference" ( Matter of Fetahaj v. Starbucks Corp., 144 A.D.3d at 1351, 41 N.Y.S.3d 322 [internal quotation marks and citations omitted] ). "With regard to questions of fact and factual inferences to be drawn therefrom, ... a decision of the [B]oard is ‘conclusive upon the courts if supported by substantial evidence’ " ( Matter of Markey v. Autosaver Ford, 181 A.D.3d at 1127, 119 N.Y.S.3d 773, quoting Matter of Axel v. Duffy–Mott Co., 47 N.Y.2d 1, 6, 416 N.Y.S.2d 554, 389 N.E.2d 1075 [1979] ). Substantial evidence "is a minimal standard and demands only that a given inference is reasonable and plausible, not necessarily the most probable" ( Matter of Haug v. State Univ. of N.Y. at Potsdam, 32 N.Y.3d 1044, 1046, 87 N.Y.S.3d 146, 112 N.E.3d 323 [2018] [internal quotation marks and citations omitted] ). "Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently" ( id. [citations omitted] ).

"Inasmuch as employers who seek to discourage their employees from pursuing workers' compensation claims rarely broadcast their intentions to the world, distinguishing a discharge motivated by retaliation from a discharge based upon a legitimate business concern can be challenging" ( Matter of Rodriguez v. C & S Wholesale Grocers, Inc., 108 A.D.3d 848, 849–850, 968 N.Y.S.2d 728 [2013] [internal quotation marks and citations omitted] ). Nevertheless, upon our careful review of the record, we conclude that substantial evidence supports the Board's determination that claimant failed to establish a violation of Workers' Compensation Law § 120.

Initially, the record does not support an inference of retaliation with respect to claimant's title reclassification. Rather, the record demonstrates that, upon receiving the January 2015 notice informing claimant of the employer's intent to terminate his employment in accordance with Civil Service Law § 73, he specifically requested to be reclassified to the title of station agent as he had not been medically cleared to return to work as a train operator. Claimant acknowledged as much during the administrative hearing and confirmed that he had checked a box on the January 2015 notice electing to be reclassified.

Nor did claimant establish that the employer placed him on probation in that title in retaliation for pursuing workers' compensation benefits. Instead, the record reveals that claimant was subjected to the same probationary period as similarly situated reclassified employees pursuant to an evenhanded policy (see generally Matter of Duncan v. New York State Dev. Ctr., 63 N.Y.2d at 134, 481 N.Y.S.2d 22, 470 N.E.2d 820 ).³ The employer's chief officer of human resources testified that, pursuant to section 6.1.9 of the rules and regulations of the Department of Citywide Administrative Services of the City of New York (hereinafter DCAS) – which govern the employer's conduct (see Public Authorities Law § 1210[2] ) – employees who are no longer able to perform the essential functions of their positions due to a disability may be reclassified to another position for which they are qualified under the Civil Service Law and must serve a one-year period of probation in that title. He further explained that, under the DCAS rules, a reclassified employee who fails to complete the required probationary period may be terminated (see generally Matter of Dozier v. New York City, 130 A.D.2d 128, 139, 519 N.Y.S.2d 135 [1987] ). The employer's senior director for operations training agreed with those assessments, testifying that all medically reclassified employees are generally required to serve a...